Published On: 17th August 2026
Authored By: Sanjana Singh
KIIT School of Law,
KIIT Deemed to be University
I. Introduction
India replaced three colonial-era statutes, which governed its criminal justice system for well over a century, on 1 July 2024. The Bharatiya Nyaya Sanhita, 2023 (“BNS”), the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”), were forward-looking measures that contained provisions that had never been contained in existing laws. The Supreme Court and the High Courts have now built up a significant amount of transitional jurisprudence on the temporal applicability of the new codes, on procedural innovations under the BNSS, and, most contentiously, on the survival of the colonial exception to the offence of rape into the supposedly reformed Section 63 of the BNS. This paper looks at the jurisdiction rules as it was in mid-2026 and points out the critical issues. The new codes have caused more restrictions than an opening. The pending challenge to the marital rape exception shows the limits of codification as a vehicle for substantive reform.
II. The Architecture of Replacement
The objective of the legislative exercise as explained by the union government is decolonisation: replacing laws and statutes written by a colonial regime with those compatible to contemporary Indian values and priorities. In numerical terms, BNS added twenty new offences to code inherited from IPC and dropped nineteen provisions altogether, while increasing term of imprisonment for 33 offences and enhancing fines for eighty-three others. A minimum punishment was provided for 23 offences and community service was first recognised as a form of punishment for six offences.[1] The introduction of statutory time limits for the completion of trials with criminal procedure modelling scheme and system provisions for the videographed search and seizure of evidence and a modified and broadened framework for the trial in absentia, despite not changing the substance of the procedural architecture of the CrPC, has not changed the numbering of sections of the CrPC.[2] The BSA restructured the governing law of evidence to provide for electronic and digital records expressly in a formalisation of practices that Courts had already been developing under Section 65B of old Evidence Act.[3]
The volume of litigation just because of scale of renumbering. Because codes came into force prospectively, courts had to determine, offence by offence and proceeding by proceeding, whether old or new law governs. The Allahabad High Court ruling in Deepu v State of Uttar Pradesh, rendered by Justices Vivek Kumar Birla and Arun Kumar Singh Deshwal, addressed the scenario of offence committed before 1 July 2024 but which reported to police or investigated later. The Court ruled that the substantive law relevant to an offence is determined at the time the offence is committed. Therefore, as offences committed prior to the appointed day continue to be governed by the IPC and the CrPC, a First Information Report registered thereafter does not alter this position. Only offences committed on or after 1 July, 2024 are to be prosecuted under the BNS and BNSS.[4] The ruling, which aligns with the common principle against penal laws with retrospective effect as stated in Article 20(1) of Constitution, has since then been settled practice in trial courts dealing with the transition, although it has created an administrative mess where the date of offense and the date of FIR fall after the changeover.
III. Procedural Reform and Its Frictions: The Sanction Bottleneck
Provisions of BNS have bore more of an evolving manner than being revolutionary but however BNSS has resulted in real procedural controversy at least in so far as the requirement of prior sanction for prosecution of public servant is concerned. According to Section 217 of the BNSS, which is similar to Section 197 of CrPC, the appropriate government’s sanction is required before the court can take cognisance of the offence if the alleged act is done by a public servant acting or purporting to act in discharge of official duty.[5] In practice, applications for sanction have sat before competent authorities for months, sometimes years, thereby immunising errant officials by administrative inertia rather than by any decision on merit.
In order to combat the “lethargy and/or apathy” of the authorities, the Madras High Court held that sanction shall be deemed to have been granted if no decision is taken within one month of a request.6 When the matter reached the Supreme Court, it noted that such cases keep coming up. Moreover, since connected proceedings are pending before a bench which is presided over by the Chief Justice of India, the Supreme Court referred the issue of determination of deemed sanction to a larger bench for authoritative determination. Further, it directed that the Madras High Court deemed sanction direction will stay till further orders. The importance of this reference stems from the fact that it highlights the structural deficiency that the recodification of criminal law under the Bharatiya Nagarik Suraksha Sanhita, 2023, introduces dangerous mechanisms under the guise of efficiency. Specifically, Section 218(1) of the BNSS creates a strict 120-day window after which a prosecution sanction is ‘deemed to be granted’ if the executive fails to act.
This arbitrary statutory timeline fails to understand the realities of administrative functioning and strips away necessary procedural safeguards. As the Supreme Court rightly observed in Suneeti Toteja v. State of Uttar Pradesh,[6] criminal procedure does not naturally contemplate an implicit ‘deemed sanction’ rule. The Court correctly recognized that administrative silence or lethargy should never be equated with an automatic green-light to prosecute. By overriding this judicial caution, the text of the BNSS creates an aggressive, default consequence for executive inaction, leaving public servants entirely exposed to premature or malicious litigation if an authority simply misses a paperwork deadline.
IV. Bail Jurisprudence Under the New Codes
Due to the harmful and disregard for human life components of the BNS, the Courts will also calculate fines. The Supreme Court revoked the bail previously extended to the husband of a deceased woman. The woman’s mother had filed an appeal with the Court after her daughter’s death within 18 months of marriage. The family alleged that the death was due to dowry harassment. The husband’s bereavement was cancelled under Sections 103(1) and 80 of the BNS.
These sections deal with murder and cruelty either by husband or his relatives.[7] The standards used by the court were similar to the standards that have always been used in IPC sections 302 and 498A for matrimonial offences. Clearly, the court is signalling that in the arena of matrimonial offences, recodification has carried forward the standards that were part of section 498 of the prior docs with new numbering, but has not changed the substantive standard of scrutiny which is applied through the stage of bail. However a similar view was taken by the court in terms of sections 442 and 402 of the BNSS which is a recoded version of 401 CrPC. In Seesa Santosh v. State of Telangana, the Supreme Court of India set aside a High Court order that allowed an accused who faced serious allegations to leave India despite a Look Out Circular and a history of engaging in delaying tactics. The High Court applied revisional jurisdiction with excessive indulgence toward the respondent.[8] Generally speaking, BNSS provision has emerged as textual successor to settled CrPC jurisprudence on revisional restraint. The broader pattern of procedural recodification in India has for the most part, preserved rather than displaced existing doctrine. This is even as section numbers which practitioners must now master have changed wholesale.
V. Trafficking, Child Protection, and the Limits of Codification
The application of new codes was not a trouble-free call but nowhere is the gap between codification and substantive reform as wide as in the law now relates to human trafficking. In a recent proceeding regarding the constitutional right to the rehabilitation of victims, the Supreme Court held the combined reading of Articles 21 and 23 of the Constitution establishes that there exists a fundamental right to rehabilitation which extends beyond the principle and prosecution of simple rescue. The Court traced it back to its founding bonded-labour jurisprudence of Bandhua Mukti Morcha v Union of India.[9] Throughout the course of the proceedings, the Court rejected the contention of the Union Government that the existing statutory framework comprising the Immoral Traffic (Prevention) Act, 1956 and the trafficking provisions of BNS adequately deals with the problem. In the present decision, the Court specifically noted that the Immoral Traffic Act continues to conflate prostitution with trafficking and, more pointedly for present purposes BNS itself had failed to remove the “means” element from the definition of child trafficking. As a result, Indian law remains out of step with the Palermo Protocol’s approach to trafficking in minors. Under the Protocol, the use of improper means should be legally irrelevant once the victim is a child.[10] The observation made is a pointed one. An exercise labelled as wholesale modernisation of India’s criminal law has, in at least one significant particular, retained a drafting gap identified by international instruments as a priority for reform.
In the same way, the Supreme Court has been ready to look at what have been labelled trafficking and sexual-offence complaints under the BNS. Earlier, it did so in various cases which involved similar complaints under the IPC and the Protection of Children from Sexual Offences Act, 2012. One case involved the Court quashing of criminal proceedings against the father, grandmother, uncle and aunt of a minor complainant under multiple sections of the BNS along with provisions of the POCSO Act. The allegations were held to be vague and unsubstantiated, and bore tell-tale signs of tutoring. Further, it was held that the complaint did not have the factual and medical basis to make out a prima facie case for offences as serious as those alleged.[11] The decision highlights that additions to and renumbering of BNS’ catalogue of offences, does not alter the evidence threshold that the prosecution must cross at the quashing stage. Likewise, the judiciary’s role as a bulwark against abuse of serious charges in family disputes has not been diminished.
VI. Section 63 and the Marital Rape Exception: Continuity Dressed as Reform
The most important unresolved issue in India’s new criminal law is substantive, not procedural. It is, of course, the exception that survived recodification almost entirely unchanged. BNS’s section 63, defining rape, runs almost identical to erstwhile section 375 of IPC. Here, definition of penetrative sexual assault has been expanded. Furthermore, it reiterates that consent cannot be implied from silence of a woman or her lack of physical resistance against the abuse. Exception 2 of Section 63 says that penetration or sexual acts by a man with his own spouse who is above the age of eighteen is not considered rape.[12] The main difference between IPC and here is only the age threshold itself. Following Supreme Court’s decision in Independent Thought v Union of India case, which read down the marital exception in section 375 to the extent it permitted the intercourse with a wife between fifteen and eighteen years of age, Parliament increased the statutory age in BNS from fifteen to eighteen.[13] The other elements of the defence and the immunity from prosecution it conferred upon husbands was a nineteenth-century provision which was based on a seventeenth-century doctrine laid down by Sir Matthew Hale. According to Hale, upon marriage a wife was deemed to have given irrevocable and continuing consent to intercourse.[14].
Since January 2024 hearings began, under the then Chief Justice D.Y. Chandrachud, a challenge to the exception has been pending before the Supreme Court.[15] In October 2024, the Union Government filed an affidavit opposing the removal of the exception by arguing that making marital rape a crime would be “excessively harsh” and risk destabilising the institution of marriage. Further, making the exception public would, in any event, be better left to the judgment of Parliament, which has twice declined to do so first in the 2013 amendments following Justice Verma Committee’s recommendations, and then during the draft of the BNS itself.[16] After the retirement of Chief Justice Chandrachud, the hearings were postponed and as of mid-2026, the matter is still pending before a reconstituted bench with no verdict having been passed and no date fixed for the same.[17]
The High Courts remain under an obligation to apply exception as written unless a Supreme Court decision shall provide otherwise the practical results of this unresolved constitutional question appear to be mounting. Chhattisgarh High Court on Wednesday, 23 February 2025, acquitted a man of rape and culpable homicide despite a dying declaration. In that dying declaration, the wife of the man, before her death, said that she was subjected to non-consensual anal intercourse. The acquittal of the man did not rest on any defect in evidence. But, on the statutory exception itself. Benches, like the Allahabad High Court in cases about the autonomy of consenting adults in live
in relationships, are willing to dissociate legal reasoning from inherited moral assumptions.
However, this is not true for courts which are confronted with the marital exception itself. They have not had too much room to manoeuvre. The statutory text is clear and absent a certain constitutional ruling, “the problem is in the statute” not any interpretive choice available to the judiciary.
This demonstrates a wider argument about the limitation of codification as a medium of reform. The exercise that produced the BNS was marketed, both politically and in much of the surrounding commentary, as a wholesale decolonisation of Indian criminal law an opportunity to excise provisions whose lineage could be traced to colonial or pre-colonial patriarchal assumptions incompatible with a constitutional order built on articles 14, 15, and 21. Yet on the single provision that has drawn the most sustained public and judicial attention on precisely those grounds, Parliament chose continuity over rupture, retaining a doctrine which has been abolished in England and Wales the very jurisdiction from which it drew genesis and that is criminalised in some form in over 150 other jurisdictions.[18] Thus, the executive is in an atypical situation where, after having presented the project as a package of comprehensive reform, he defends before the Court the maintenance of one of the unfavourable legacy, that the project was blamed, under the argument that the exception reflects an conscious choice of the legislator, reiterated on several occasions and not a failure.
VII. Assessment: Recodification Without Reformation?
All in all, the jurisprudence surveyed above suggests a more complex story than either the Government’s framing of the BNS as transformative reform or the critics’ framing of the same as mere relabelling would suggest.
In multiple sections related to matrimonial offences, the scope of revisional jurisdiction, and the standard of evidence for quashing complaints of sexual offences – courts have imported settled IPC and CrPC era doctrine wholesale into the new section numbers, producing genuine continuity in outcomes even as the citational apparatus of Indian criminal law has been rewritten. One area where the recodification has left an old structural problem with the sanction bottleneck under Section 217 of the BNSS this essentially untouched resulted in the judiciary itself thinking of fashioning a remedy through a larger-bench reference when nor any novelty in the statutory word. Further, on the trafficking provisions, the Supreme Court has pointed towards a substantive gap the retained “means” element in the definition of child trafficking which the reform exercise had the opportunity, but did not, close.
The exception of marital rape is the most obvious example of this pattern precisely because it is the provision where public and judicial attention has been most sustained, and because it is the provision where the constitutional stakes – the equal protection of married and unmarried women against sexual violence, and the extension of bodily autonomy in the domestic sphere – is most visible. Two years after the new codes took effect, the outcome of the pending challenge to Exception 2 of Section 63 remains the single most consequential unresolved question in Indian criminal law, not because the BNS created the problem, but because it was the vehicle through which Parliament had the clearest possible opportunity to resolve it, and chose not to.
VIII. Conclusion
The pending challenge to Exception 2 of Section 63 is the most consequential unresolved question in Indian criminal law two years after the new codes came into operation. It is not because BNS created a problem but because it was the vehicle through which Parliament had the clearest possible opportunity to resolve the issue. Nonetheless, Parliament did not choose to do this. The
transition from I.P.C, C.R.P.C, Evidence Act to B.N.S, B.N.S.S, B.S.A has resulted in two years of intensive judicial engagement ranging mechanically to question of temporal applicability to dimension more fundamentally lacking which recodification without re-evaluation of contested substantive provisions can meaningfully be termed reform at all. The recent case laws and decisions from different courts in India on the enactment of the new codes suggest that the courts have, broadly, dealt with the new codes as being continuous with their predecessor in doctrine, even where there is a discontinuity in the text. Where there has been genuine scrutiny, that is only with respect to a handful of provisions the sanction for prosecution, the definitions of trafficking, and, above all, the marital rape exception. Here, there is a gap between the promise of a decolonised, modernised criminal law and its textual reality which remains most exposed. However, the eventually reconstituted Supreme Court bench will rule on Exception 2 of Section 63, that ruling, and not the BNS’s enactment itself, will likely be remembered as the true test of whether India’s new criminal codes are a substantive break from or mere renumbering of their colonial predecessors.
IX. References
[1] Bharatiya Nyaya Sanhita 2023 (India); Ministry of Home Affairs, Government of India, Notification No SO 2686(E) (24 July 2024) (appointing 1 July 2024 as the date on which the BNS came into force).
[2] Bharatiya Nagarik Suraksha Sanhita 2023, s 1(2).
[3] Bharatiya Sakshya Adhiniyam 2023, s 1(2).
[4] Deepu v State of Uttar Pradesh [2024] AHC 126843-DB.
[5] Bharatiya Nagarik Suraksha Sanhita 2023, s 217; Code of Criminal Procedure 1973, s 197.
[6] Suneeti Toteja v. State of Uttar Pradesh [2025] INSC 267.
[7] Sumit v. State of Uttar Pradesh & Anr [2026] INSC 145.
[8] Seesa Santosh v State of Telangana [2026] INSC 628.
[9] Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161; discussed in ‘Supreme Court Weekly Digest (29.05.2026-04.06.2026)’ (n 8).
[10] ibid.
[11] ‘Supreme Court Weekly Digest (29.05.2026-04.06.2026)’ (n 8); Protection of Children from Sexual Offences Act 2012, ss 3-4.
[12] Bharatiya Nyaya Sanhita 2023, s 63, Exception 2.
[13] Independent Thought v Union of India [2017] 10 SCC 800.
[14] Feminism in India, ‘The Marital Rape Exception: What the Law Says and What It Refuses to See’ (Feminism in India, 14 April 2026) <https://feminisminindia.com/2026/04/14/the-marital-rape-exception-what-the-law-says-and what-it-refuses-to-see/> accessed 19 July 2026.
[15] ibid.
[16] ibid.
[17] ibid.
[18] Feminism in India (n 14).
